Canada Day is a reminder that the country urgently needs political renewal and a modern constitution. The nation state founded 151 years ago was not founded on a modern basis then and today, when only the police powers remain of the public authority created at that time, it is not only totally anachronistic but moribund.
Confederation in 1867 was a power-sharing arrangement between Britain and the local ruling elite and concerned itself mainly with the division of powers between the central government and the provinces. The promise to submit the agreement that united four provinces into a dominion for the people’s approval was quickly abandoned when it became clear that they would have rejected it. Contrary to what the ruling elite suggest, the 1982 patriation of the Constitution and addition of a Charter of Rights and Freedoms do not break with the past. They do not change the fact that the Constitution of Canada does not emanate from the people and Confederation did not permit a free and equal union of sovereign peoples.
Canada’s Constitution Act 1982 maintains the division of the polity between those who rule and those who are ruled. Rights are defined by the rulers as privileges accorded by their political power which exists above the rule of law. The Queen of England is Canada’s Head of State. She represents the “Crown” – a remnant of a medieval institution based on blood lines and hereditary privilege. This Crown was also incorporated as a capitalist institution in the form of a person of state with property rights which define the relations people enter into and the national interest at any time.
The Constitution enshrines the Royal Prerogative. This is not a perfunctory device or rubber stamp of Acts of Parliament. It makes sure the political power remains in the hands of the ruling elite who wield police powers, the decision-making powers which exist above the government of laws. Both the Executive and the Supreme Court stand above the rule of law. The executive powers in the hands of the Prime Minister and his Cabinet decide matters of war and peace, including crucial matters related to the economy such as treaty-making related to trade, defence and law and order under the pretext of upholding the national interest. The Supreme Court can rule a law or decision ultra vires – unconstitutional – which does not take away from the Executive’s ability to wield the police powers which do not require legislative approval. These prerogative powers maintain and guarantee the political power in the hands of rulers who uphold private interests. They do not represent “the people” but the person of state.
Even the members of the parliaments and legislatures swear allegiance to the person of state. They do not, in fact, represent the people. Like lawyers are agents of the courts and must serve the courts even though this often comes into conflict with the interests of their clients, so too members of parliament are expected to uphold the private interests of the person of state and this often comes into conflict with the interests of the people. This is sometimes presented as a problem of political parties dictating how members should vote in the parliament but this only serves to mask the underlying problem: the illusion that elections are held to elect the people’s representatives. In fact, in Canada elections are a method of choosing a party government which claims to represent the people but is in fact designed to uphold the private interests of the person of state.
A change from sovereignty residing in the monarch to sovereignty residing in the people is not a minor one. It constitutes a radical departure from the rule of the few in their narrow interests over the many to the rule of the many in the broad public interest. It is not possible to have a modern constitution consistent with the aspirations and demands of the people at this time in history without a clear affirmation and definition that sovereignty is vested in the people and they write and approve their country’s Constitution. The sovereign power sanctions everything fundamental in terms of the law of the land and everything that emanates from it.
When the Prime Minister or Premiers say they have a mandate to rule for an allotted time frame, legally the Constitution allows them to do so in an absolutist manner within the definition and separation of federal and provincial powers. Were the Constitution to declare that sovereignty resides in the people, then it would have to stipulate the rights and duties the people grant their governments, and how the governments are to be chosen by the people. A change in this regard would necessarily mean recognizing and establishing in law that the people are sovereign and they create the legal means which enable them to affirm their sovereignty. The ruling elite are neither willing to accomplish nor capable of making such a formidable epoch-changing break with the past.
A democracy that does not provide the citizens of the country with the means to exercise control over the policies and decisions of the elected bodies according to the fundamental law they themselves have enacted is a form of authoritarian and absolutist rule. The time is now for all working people to work together with their peers and with the people of Quebec and the Indigenous peoples to break with the past and deprive the authorities of their power to deprive the peoples of what belongs to them by right, especially the right to lay the claims on society which humanize the natural and social environment. The people must empower themselves by taking control of the direction of the economy and political, social and cultural affairs.
The people’s movement for empowerment is a condition for breaking with the past and turning things around in favour of the peoples, not the rich. It can be done! It must be done!
Source: TML Weekly, June 30, 2018 – No. 25